On October 31, 2011, West Virginia University, by and through the West Virginia Board of Governors, filed suit against the Big East Conference seeking declaratory relief, permanent injunctive relief, and damages for breach of contract.  According to the complaint, West Virginia University joined the Big East Conference as a football member only in 1991 for its inaugural football season and subsequently joined as a full member in all sports in 1995.  For the following eight years, the Big East Conference had seven institutions that competed in NCAA Division I football and seven that did not compete in Division I football.  According to West Virginia University, this arrangement led to “instability in the conference” and caused the University of Miami, Virginia Polytechnic Institute and State University (i.e., Virginia Tech), and Boston College to withdraw from the Big East in order to join the Atlantic Coast Conference (“ACC”).  Following the defection of these institutions to the ACC, the Big East Conference invited the University of Louisville, University of Cincinnati, and University of South Florida to join as full members competing in NCAA Division I football and DePaul University and Marquette University to join as full members not competing in NCAA Division I football.  Following the 2003 defections, the Big East Conference reorganized with sixteen member institutions including eight institutions competing in NCAA Division I football and eight non-football institutions.

In March 2008, the Big East Conference members agreed to amend the conference bylaws entitled the Big East Conference Amended and Restated Bylaws (“Big East Bylaws”).  According to West Virginia University, the critical purpose of the Big East Conference is to “[e]nhance the opportunities for participation in, and the level of competition of, men’s and women’s intercollegiate athletics on an equitable basis[.]”  Among other things, the Big East Bylaws provide for various decisions to be made by the member institution leaders including matters relating to football members.  According to the Big East Bylaws, Big East Conference members that do not offer football are permitted to vote on football-related matters.

On October 27, 2011, it was announced that West Virginia University accepted an invitation to join the Big 12 Conference.  According to the Big East Bylaws, a withdrawing member is required to 1) provide written notice of its intent to withdraw from the conference; 2) specify an effective date of withdrawal which must be at least twenty-seven months after the date that the withdrawal notice is received by the commissioner; and 3) pay a withdrawal fee to the Big East in the amount of five million dollars ($5,000,000.00).  The Big East Conference has maintained that West Virginia University will not be eligible to join the Big 12 Conference until July 1, 2014.  West Virginia University states it “had no choice but to accept the Big XII’s offer” because the conference had “denigrated into a non-major football conference” in light of the defection of Texas Christian University (before playing a game), Syracuse University, the University of Pittsburgh, and possibly the University of Connecticut.

As a result, West Virginia University states the denigration of the conference is “a direct and proximate result of ineffective leadership and breach of fiduciary duties to the football schools by the Big East Conference and its commissioner.”  West Virginia University specifically states the Big East Conference and its commissioner “failed to take proactive measures to maintain, let alone enhance, the level of competition for the Big East football schools” despite the Big East football schools advocating for measures to be taken by the Big East Conference and its commissioner.  Additionally, West Virginia University argues that the commissioner did nothing to protect the football playing institutions, but took direct measures to protect the non-football playing institutions.

As a result, West Virginia University filed suit seeking a declaration that the Big East Bylaws are void and have no effect as between the parties, or in the alternative, declaring that the Big East Conference accepted West Virginia University’s proposal or offer to immediately withdraw from the conference.  Additionally, West Virginia University argues that the twenty-seven month notice period provided for in the Big East Bylaws is an unreasonable restraint on trade and, thus, the Big East Conference should be enjoined from enforcing such provision.  Finally, West Virginia University states the “actions and inactions of the Big East and its Commissioner” constitute a material breach of their agreement, which thereby excuses West Virginia University from performance.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.